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The - APN Briefing Note Maritime Border Dispute: Number 25 May 2019 An Unnecessary Diplomatic Row? By Kizito Sabala RECOMMENDATIONS This briefing note examines the implications of the maritime border dispute between Kenya and Somalia following claims that Somalia has auctioned the Both countries should oil and gas fields in the disputed , which are currently the subject of an refrain from any actions International Court of Justice (ICJ) case at The Hague. that could exacerbate the current crisis. They should THE KENYA-SOMALIA MARITIME DISPUTE: BACKGROUND AND STATUS restore diplomatic relations and cooperation activities. The dispute between Kenya and Somalia over the delimitation of the dates back to 1999. The contested area is a triangle in the Indian IGAD, a regional organization stretching for more than 100,000 square kilometers with four maritime of which both countries are gas and oil blocks located within it.1 The dispute is over the oil and gas de- members, should step in and posits within and below the seafloor whose boundary is in contention. Somalia help mediate the conflict. insists that its 1960 border stretched diagonally south-eastwards while Kenya Both countries should says the boundary should move eastwards.2 request the ICJ to expedite On May 25, 2016, Kenya unsuccessfully invited Somalia to enter into “pro- visional arrangements of a practical nature” pending the agreement on bound- the hearing of the case ary demarcation. On February 2, 2017, the International Court of Justice (ICJ) and make a final ruling ruled that it had to hear the application filed by Somalia on August as quickly as possible. 28, 2014. Consequently, Somalia submitted a reply and Kenya followed with Development partners a rejoinder between June 18 and December 18, 2018. The ICJ reserves the interested in investing or subsequent procedure for further decision which will be binding to both par- exploiting the resources in the ties. Before the matter was referred to the court, Kenya claimed uncontested jurisdiction in the disputed area since its first proclamation of the EEZ in 1979. disputed territory should wait

for the final determination. 1 “Somalia Sues Kenya at Top UN Court Over Maritime Border,” AFP, August 28, 2014, https://news.yahoo. The two countries can com/somalia-sues-kenya-top-un-court-over-maritime-225946278.html. 2 Patrick Mbararu, “How to Solve Kenya-Somalia Maritime Border Row,” The Standard (Digital), September explore the option of a 28, 2016, https://www.standardmedia.co.ke/article/2000217570/how-to-solve-kenya-somalia-maritime- sharing and co-operation border-row arrangement for developing Kizito Sabala is currently a lecturer at the University of Nairobi, Kenya and a consultant on peace, the resources in this security, and safety issues. He was previously the head and political officer of IGAD Liaison Offices in Nairobi and Juba. Prof. Sabala holds a PhD in International Studies. He was part of a 2016-2018 APN disputed oil-rich zone. Collaborative Working Group and a member of an Expert Group on South Sudan.

African Peacebuilding Network | Social Science Research Council | www.ssrc.org One Pierrepont Plaza, 15th Floor, 300 Cadman Plaza West, Brooklyn, NY 11201 USA For more information please contact the APN: [email protected] THE LONDON CLAIMS AND THE RESULTANT for the over 3,500 Kenyan troops in Somalia to continue DIPLOMATIC SPAT serving as part of AMISOM. This is because they may be The border dispute between Kenya and Somalia escalated a target of more terror attacks from al-Shabaab as a result on February 6, 2019, following the unveiling of the final of limited support from the current in Moga- delineation of the oil exploration zone consisting of up to dishu. Since the entry of the Kenya Defence Forces (KDF) fifty oil blocks. Kenya alleges that Somalia had put the oil into Somalia in 2010, al-Shabaab has increased its terror blocks up for auction in London—including those that Ke- attacks in Kenya and against KDF in Somalia as a way to nya claims are within its maritime territory. According to compel the country to withdraw. If Kenya decides to pull some sources, Somalia plans to auction blocks 230, 231, out its troops, then the mission will be weakened and the 232, and 233 by the end of the year for exploration begin- gains made could be reversed. The second option is to ning in 2020. make the situation clear to interested international inves- In response, Kenya recalled its ambassador to Soma- tors, such as Total and the Texas-based Anadarko, who lia, Lukas Tumbo, and summoned his Somali counterpart have already been awarded exploration rights by Kenya 6 in Kenya, Mohamoud Nur, demanding a withdrawal of the and ask them to refrain until the court rules. Somalia too that were displayed in London and a stop to the has several but relatively limited options. The country can auctioning of the blocks.3 According to Kenya, these maps take proactive measures toward restoring Kenya’s trust ir- reinforce Somalia’s claims to maritime zones and are con- respective of the outcome of the ICJ ruling. sistent with the country’s position currently before the ICJ. In a tense statement, Kenya’s principal secretary for foreign affairs and , Macharia Kamau, reportedly RECOMMENDATIONS threatened that the country would do all it could, including perhaps going to , to protect its territorial integrity.4 Kenya’s reaction should be viewed within a broader Both countries should refrain from any actions that context. The country hosted the peace process that led could exacerbate the current crisis. They should restore to the first semblance of a government installed in Baidoa, diplomatic relations and cooperation activities. Somalia in 2007 after numerous unsuccessful attempts to resolve the Somali conflict.5 In addition, it provided the IGAD, a regional organization of which both countries special envoy, the late Ambassador Bethuel Kiplagat, who are members, should step in and help mediate the conflict. spearheaded the peace process, and to date, the Kenyan government has refused to bow to domestic pressure to Both countries should request the ICJ to expedite the pull its troops out of AMISOM. Kenya hosts more than hearing of the case and make a final ruling as quickly as 300,000 Somali refugees in Kakuma and Dadaab refu- possible. gee camps, and a significant number of Somali citizens throughout the country. For years, Nairobi has served as Development partners interested in investing or exploit- the center for humanitarian coordination efforts for con- ing the resources in the disputed territory should wait for flict-affected Somalia. Kenya perceives that Somalia’s ac- the final determination. tion is in bad taste and shows a lack of appreciation of their contribution to post-war reconstruction and peace- The two countries can explore the option of a sharing building in Somalia. and co-operation arrangement for developing the resourc- es in this disputed oil-rich zone. Such an arrangement can IMPLICATIONS OF THE ROW BETWEEN KENYA borrow from a similar case between Nigeria and São Tomé AND SOMALIA and Príncipe that culminated in a joint development zone There are several options available to each country. Should that has enabled the two countries to share their oil and Kenya decide to sever diplomatic relations, it will be difficult gas resources.7

3 “Somali President, Uhuru Kenyatta to Meet in Kampala as Row Deepens over 6 “Uhuru’s Jubilation over the Godane Killing is Ill-advised,” Jukwaa (Kenya Forum Sea Border,” Hagaag.com, 2, 2019, https://hagaag.com/2019/03/02/ Discussion), last accessed March 27, 2019, http://jukwaa.proboards.com/ somali-president-uhuru-kenyatta-to-meet-in-kampala-as-row-deepens-over- thread/9184/uhurus-jubilation-godane-killing-advised. sea-border/. 7 Tanga Biang, “The Joint Development Zone between Nigeria and Sao Tome and 4 Guleid Mohammed, “In Border Dispute with Somalia, Kenya’s Top Diplomat Principe: A Case of Provisional Arrangement in the Gulf of Guinea International Overreacted,” The Standard, February 21, 2019. Law, State Practice and Prospects for ,” Division for Ocean 5 Kizito Sabala et al., “The Somali Peace Process from Arta to Eldoret to Mbagath: Affairs and the Law of the Sea, Office of Legal Affairs, , retrieved Opportunities and Challenges,” in The Resolution of African Conflicts, eds. Alfred on February 24, 2019, http://www.un.org/depts/los/nippon/unnff_programme_ Nhema and Paul Tiyambe (Oxford: James Currey, 2004), 118-134. home/fellows_pages/fellows_papers/tanga_0910_cameroon.pdf.

APN | Briefing Note No. 25 | May 2019 2